ARAB CONTRACTORS (O. A. O.) NIGERIA LTD v. GILLIAN UMANAH
(2012)LCN/5318(CA)
In The Court of Appeal of Nigeria
On Thursday, the 26th day of April, 2012
CA/L/445M/09
RATIO
POLICE: WHETHER THE POLICE SHOULD INTERFERE IN MATTERS OF CIVIL ARRANGEMENT
There is a plethora of cases on the fact that a civil arrangement is not a matter for the police. The police, as the Respondent’s counsel has pointed out, is not a debt collecting organization. In Igwe v. Ezeanuchie (2010) 7 NWLR Pt.1192 Pg. 61, this Court held that the police are not and should not in any community of civilized people be used as debt or levy collectors, or in the resolution or settlement of civil disputes amongst people. See also AGBAI V. OKUGBUE (1991) 7 NWLR Pt.204 Pg.391; NKPA V. NKUME (2001) 6 NWLR Pt. 710 pg. 543. PER MORONKEJI OGUNWUMIJU, J.C.A.
TORT: WHETHER A PRIVATE INDIVIDUAL CAN BE GUILTY OF FALSE IMPRISONMENT MERELY BECAUSE HE GAVE INFORMATION TO THE POLICE
Every private individual has the right to report a crime or a suspected crime to the police. This on its own cannot ground an action for false imprisonment against the private individual. The Supreme Court in Isheno v. Julius Berger (Nig.) Plc. (2008) 6 NWLR (pt.1084) Pg. 582 at 597 held that:
“The position of the law is that an action for false imprisonment will not lie against a private individual who merely gave information which led the police on their initiative to arrest a suspect.”
In Okonkwo v. Ogbogu (1996) 5 NWLR Pt. 449 Pg. 420 at 433, the Supreme Court per Ogwuegbu JSC held as follows:
“To succeed in an action for false imprisonment, the plaintiff must show that it was the defendant who was actively instrumental in setting the law in motion against him.”
Thus, for a party to succeed in an action for false imprisonment, the party must prove that it was the other party that was actively responsible in setting the law in motion against him. PER MORONKEJI OGUNWUMIJU, J.C.A.
TORT: MEANING AND NATURE OF FALSE IMPRISONMENT
It is indeed trite, that the term false imprisonment, as a common law misdemeanor and a tort, denotes a restraint of a person in a bounded area without any justification or consent. The term applies to both private as well as governmental detention. According to R.F.V. Heuston, in SALAMOND ON THE LAW OF TORTS, 17TH edition, 1977 at 123 –
[In the phrase false imprisonment] false is…used, not in the ordinary sense of mendacious or fallacious, but in the less common though well established sense of erroneous or wrong; as in the phrases false quantity, false step, false taste, etc.
See also BLACK’S LAW DICTIONARY 9TH edition, 2009 at 677 – 678 thus:
Some courts have described, false and false imprisonment as causes of action which are distinguishable only in terminology. The two have been called virtually indistinguishable, and identical. However, the difference between them lies in the manner in which they arise. In order to commit false imprisonment, it is not necessary either to intend to make an arrest or actually to make an arrest. By contrast, a person who in falsely arrested is at the same time falsely imprisoned. “32 Ani Jur. 2nd False Imprisonment c3 (1995).”
It’s a well settled principle, that an action for false imprisonment (or false arrest, as the case may be) will not lie against a private individual who merely gave information which led the police, on their own initiative, to apprehend a suspect. See ISHENO vs. JULIUS BERGER (NIG) PLC (2008) 6 NWLR (pt.1084)582 at 597. Conversely, for an action for imprisonment to lie against a private individual, the complainant has an onerous duty of establishing that the defendant was actively responsible for setting the law in motion against him. See OKONKWO vs. OGBOGU (1996)5 NWLR (pt.449) 420 at 33 per Ogbuegbu, JSC. PER I. M. M. SAULAWA, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
Between
ARAB CONTRACTORS (O. A. O.) NIGERIA LTD Appellant(s)
AND
GILLIAN UMANAH Respondent(s)
MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Honourable Justice R. I. B Adebiyi sitting at the High Court of Lagos State, Lagos Judicial Division delivered on the 6th day of November, 2007. The facts that led to the appeal are as follows:
The Respondent, formerly an employee of the Appellant, while in its employ, applied for and was granted a car loan and a housing loan of N520, 000 by the Appellant in September 2004. The Respondent repaid some of the money leaving an outstanding balance of N338,147 which she failed to pay before resigning her appointment with the Appellant. Thereafter, the Appellant reported the matter to the police who then seized the vehicle bought by the Respondent with the car loan. The Appellant proceeded to file an action to recover the debt at the trial court. In response, the Respondent filed a counter claim seeking special and general damages for the seizure of the car by the Police. The police was joined as a party to the suit but neither entered any appearance nor defended the case. The trial court granted the claims of both parties and ordered that the sum awarded to the Appellant be offset from the damages awarded to the Respondent and the balance thereof be paid by the Appellant to the Respondent. The Appellant being dissatisfied with the judgment has brought this Appeal.
The Appellant’s brief was dated 10th day of December, 2010 and filed on the same day. The Respondent’s brief dated the 8th of February, 2011 was filed the same day and deemed filed on the 27th of June, 2011.
Appellant’s counsel, Kunle Okesanya identified three (3) issues for determination as follows:
1. Whether the lower court was right to have found and held the Appellant liable for the seizure of the vehicle by the police and consequently for the damages suffered by the Respondent.
2. Whether the lower court was right to admit and hold that the Respondent proved her counter claim solely on the basis of Exhibits D1-10.
3. Whether the lower court was right to have refused the Appellant an order to sell the vehicle to realize the debt owed to it by the Respondent.
On the other hand, counsel to the Respondent, Mike Umonnan Esq adopted the Appellant’s issues 1 & 3 and formulated a new issue 2 as follows:
“Whether it was right for the learned trial judge to have admitted Exhibit DW1 (D1).”
This issue can be subsumed under the Appellant’s issue 2 and as such I will adopt the issues as raised by the Appellant’s counsel.
ISSUE ONE
Appellant’s counsel contended that the trial court was wrong in holding the Appellant liable for the action of the police in seizing and detaining the Respondent’s vehicle. Counsel argued that all the Appellant merely did was to report a crime viz the Respondent’s failure to pay the debt due to the Appellant to the police when the Respondent’s whereabouts could not be ascertained. The Police then proceeded to investigate the matter and acted independently. Thus, quite contrary to the observation of the trial court that the claimants were instrumental to the detention of the Respondent’s vehicle by the police, counsel submitted that the Appellant did nothing to influence the police.
Counsel also argued that the Police didn’t seize the vehicle to coerce the Respondent to pay off the debt, but did so and encouraged the parties to go and settle the dispute. Counsel argued that the police is an independent organ set up and granted powers by the Police Act and the Constitution and which has the authority and power to investigate the complaint made by the Appellant against the Respondent. The decision to investigate the commission of an offence lies entirely at the discretion of the police. Counsel cited TOTOR V. AWEH (2000) 2 NWLR Pt. 644 Pg, 309 at 311; MANDILAS & KARABERIS V. APENA (1969) ALL NLR 382.
Counsel further contended that the Appellant like any other citizen had the right to make a complaint to the police and the making of the complaint without more cannot be held to mean that the Appellant was actively instrumental in setting the law in motion against the Respondent especially as there was no evidence before the court to this effect. Counsel averred that the Appellant cannot be held liable for the wrongful act of the police. If indeed what the police did was wrongful, then only the police can be punished not the Appellant.
On the other hand, Respondent’s counsel submitted that the lower court was right to have found and held the Appellant liable for the seizure of the vehicle in question by the police. Counsel further submitted that the findings of the trial court that the Appellant was the one who set the machinery in motion for the arrest of the Respondent and seizure of the vehicle was correct. Counsel pointed out that the Appellant had at the trial court, through its sole witness, Mr. Njoku, informed the court that there was a disagreement between the parties and the Appellant reported the matter to the police so that the Respondent could come and settle with it. The witness had also said that when the Respondent did not settle with the Appellant, it refused to direct the police to release the vehicle. Counsel argued that this admission by the Appellant’s sole witness reveals that the Appellant had the power to direct the police to release the vehicle and this raises the presumption that the Appellant was instrumental to the seizure of the vehicle in the first place. Counsel also pointed out the fact that the said vehicle was in the possession of the Appellant.
Counsel argued that contrary to the Appellant’s assertion that it only reported the matter to the police when the Respondent’s whereabouts couldnt be ascertained, the Respondent had in fact on several occasions after her resignation and before the arrest and seizure been to the Appellant’s office. Counsel pointed out that this fact was admitted by the Appellant’s own sole witness under cross-examination at page 212 of the records. Moreover, counsel argued that the period between the Respondent’s resignation and arrest, that is, between 6th of June 2005 and 28th of July 2005, was too short to warrant the Appellant’s assertion that the Respondent’s whereabouts could not be ascertained. Counsel argued that all these facts presuppose the presence of malice in the Appellant’s action especially since the Appellant knew that the police is not a debt collecting organization. He cited SALAWU ALAO v. KARIMU ASHIRU & ORS (1973) NSCC 523.
Counsel submitted that when a person alleges that he was arrested and detained by the police through the instrumentality of another party, all the person has to prove is that the other party set the law in motion against him and was actively instrumental to his arrest. Counsel averred that the evidence before the trial court showed conclusively that the Appellant had indeed set the law in motion for the arrest of the Respondent and the seizure of the vehicle and had actively caused the said detention and seizure by reporting a civil arrangement between them to the police. He cited FAJEMIROKUN V. C. B. (C. I.) NIG LTD (2002) 10 NWLR Pt.774 Pg.95; ONAGORUWA V. IGP (1991) 5 NWLR Pt. 195 Pg.593; EZEADUKWA V. MADUKA (1997) 8 NWLR Pt. 518 Pg. 635.
Counsel averred that since the trial court found from the evaluation of evidence before it that the Appellant was instrumental to the detention by the police of the Respondent’s vehicle, the appellate court is bound not to interfere with the findings unless such are not supported by credible evidence and have occasioned a miscarriage of justice. He cited JUA V. STATE (2010) 43 WRN 1; OLAMADE V. MUSTAPHA (2010) 40 WRN 46.
Counsel also submitted that the case against the Police was never abandoned and that the police did not enter appearance or defend the action and as such was not put on notice when the Respondent made its final address.
Counsel submitted that all the defendants in the counterclaim were jointly liable. The gravamen of the Respondent’s counter-claim against the Appellant at the trial court was damages for false imprisonment and illegal detention of the Respondent’s vehicle. There is no doubt that the Respondent was falsely imprisoned and the vehicle illegally detained. There is a plethora of cases on the fact that a civil arrangement is not a matter for the police. The police, as the Respondent’s counsel has pointed out, is not a debt collecting organization. In Igwe v. Ezeanuchie (2010) 7 NWLR Pt.1192 Pg. 61, this Court held that the police are not and should not in any community of civilized people be used as debt or levy collectors, or in the resolution or settlement of civil disputes amongst people. See also AGBAI V. OKUGBUE (1991) 7 NWLR Pt.204 Pg.391; NKPA V. NKUME (2001) 6 NWLR Pt. 710 pg. 543.
It is therefore apparent that the detention of the Respondent and the seizure of the vehicle by the police were illegal acts. Now the question that calls for determination is: Can the Appellant be held responsible for these acts? Every private individual has the right to report a crime or a suspected crime to the police. This on its own cannot ground an action for false imprisonment against the private individual. The Supreme Court in Isheno v. Julius Berger (Nig.) Plc. (2008) 6 NWLR (pt.1084) Pg. 582 at 597 held that:
“The position of the law is that an action for false imprisonment will not lie against a private individual who merely gave information which led the police on their initiative to arrest a suspect.”
In Okonkwo v. Ogbogu (1996) 5 NWLR Pt. 449 Pg. 420 at 433, the Supreme Court per Ogwuegbu JSC held as follows:
“To succeed in an action for false imprisonment, the plaintiff must show that it was the defendant who was actively instrumental in setting the law in motion against him.”
Thus, for a party to succeed in an action for false imprisonment, the party must prove that it was the other party that was actively responsible in setting the law in motion against him.
From the foregoing, it is apparent that the determination of whether the Appellant was actively responsible for the arrest of the Respondent and the illegal detention of the vehicle is a matter of fact. The court must consider several things. For instance whether there was reasonable and probable cause which led the Appellant to lodge a complaint to the police. Also, the court has to consider the presence or absence of malice in the act of the Appellant. It should be noted here that malice in this form of action is not to be considered in the sense of spite or hatred against the Respondent but of malus animus and as denoting that the appellant was actuated by improper and indirect motives. See ODUWOLE & ORS V. WEST (2010); AGUOMBA V. UWAIS (2007) ALL FWLR Pt. 346 Pg.440 at 467; BAKARE V. IBRAHIM (1973) 6 S.C. 147
It is my humble opinion then, that there are two things this court must consider in the determination of this issue. Was there probable cause on the part of the Appellant which led it to report the matter to the police? Did the Appellant act maliciously?
The Appellant, through its witness had claimed that it reported the matter to the Police because it feared that the Respondent had absconded with the Appellant’s money. Also, at the trial court, during the cross-examination of the Appellant’s sole witness, Mr. Njoku on page 180, paragraph 20 of the record, Mr. Njoku stated as follows:
“I just said that, we have a letter to dispatch to her we sent our dispatch rider to her house, no body wants to receive the letter, so we now informed the police may be they could help us get to her so that we can invite her to our office for settlement that was all.”
From the undisputed facts in this case, the Respondent resigned her employment on the 6th of June 2005 and she was arrested on the 28th of July 2005. Also, within this period, it was an undisputed fact that she had on occasions visited the office of the Appellant. How then can the Appellant justify its assertion that it only involved the police when the Respondent could not be found? The period was too short (less than 2 months) to warrant this and as such there was no reasonable cause for the Appellant to assume that the Respondent had indeed absconded with no intention to repay the debt. In any event, and in the circumstances of this case, if the Respondent indeed refused to pay her loan, it would be a breach of contract and not a criminal offence to warrant seizure of the car by the police.
I agree with the Respondent’s counsel that there seems to be a presence of malice in the act of the Appellant in reporting the matter to the police. Since there was no probable cause necessitating the report of the matter to the police, one can only presume that the Appellant wanted the vehicle seized and this was its intention when it reported the matter to the police.
I also agree with Respondent’s counsel that since the Appellant through its sole witness had admitted to the fact that it had the authority to direct the police to release the vehicle (See page 180, para 35-38 and page 181, para 1 of the records), it can be reasonably presumed that it was instrumental in setting the law in motion against the Respondent. This coupled with the fact that the vehicle was at the time of trial in the possession of the Appellant shows that the Appellant was actually actively involved in the illegal seizure of the vehicle.
This case is almost on all fours with AJAO V. ASHIRU & ORS. cited supra. In that case the Appellant’s pepper mill had been removed by the police for breach of an arrangement with the Respondents. The Supreme Court frowned at that course of action and found the Respondents liable as if they had actually removed the pepper mill. In the said case of ALAO V. ASHIRU in the NSCC report at Pg. 533, the Supreme Court held per Elias CJN as follows:
“We are of the view that, even if the police had been shown to have removed the mill at the defendants’ instance, the defendants would nevertheless have been liable for the wrongful seizure of the mill, since they would then have set in motion a ministerial act as distinct from a judicial one: Hopkins v. Crowe 111 English Reports, P.974, at P.975.
It cannot be over-emphasized to both high and low that every person resident in this country has a right to go about his or her lawful business unmolested or unhampered by anyone else, be it a Government functionary or a private individual. The courts will frown upon any manifestation of arbitrary powers assumed by anyone over the life or the property of another even if that other is suspected of having breached some law or regulation. People must never take the law into their own hands by attempting to enforce what they consider to be their right or entitlement. It is therefore wrong for a group of persons to go to the workshop of another in Bode, effect a forcible entry into it, beat up his employee and remove the morning’s takings, all in the purported but misguided exercise of power on behalf, ostensibly, of a local branch of a trade union. It is even more wrong for such persons to claim immunity for their action on the pretence that it was a police officer that they had employed to remove the pepper mill. The law of Nigeria is that those who set a ministerial rather than a judicial officer in motion in this way are as liable for the wrongful seizure of another’s property as if they had done it themselves. Police officers must, therefore, be wary of being unveigled (sic) into a situation in which they find themselves becoming partisan agents of wrong-doers in the pursuit of a private vendetta. This kind of a show of power which is becoming too frequent in our society today must be discouraged by all those who set any store by civilized values.”
I daresay that the strong words and sentiments expressed by Elias CJN in that case still holds good today. I adopt them as mine. It is therefore my humble but firm view that instigating the detention of the Respondent’s vehicle was an unlawful act done intentionally without just cause or excuse and therefore malicious in the legal sense. I do not agree with the learned appellant’s counsel that the detention of the respondent’s vehicle by the police was quite independent of the appellant. The court below found as a fact that the appellant was actively instrumental in setting the law in motion against the Respondent. There is abundant evidence upon which the court below drew the conclusion and they are justified in doing so. This issue is resolved against the Appellant.
ISSUE TWO
The Appellant’s counsel submitted that the trial judge was wrong to have admitted Exhibits D1-10 in evidence and to have held that the Respondent proved its counter claim solely on these exhibits. The said exhibits are receipts from Allen Transport Service Association and the only evidence adduced by the Respondent in support of her counter-claim.
Counsel repeated its objection to the admission of the exhibits at the trial court and argued that the said exhibits are receipts produced between August 2005 and June 2006 and that since the suit commenced on the 21st of December 2005, the exhibits breached the provisions of section 91(3) of the Evidence Act being documents produced during the pendenry of a suit and ought not to have been admitted by the trial court as evidence of proof of the Respondent’s counter claim at the trial court. He cited ABDULLAHI V. HASHIDU (1999) 4 NWLR Pt.60 Pg. 638 at 640 – 641, GBADAMOSI V. KABO TRAVELS LTD (2000) 8 NWLR Pt.668 Pg.243 at 276; SALOKO V. WILLIAMS (1998) 11 NWLR Pt.574 Pg. 505 at 507.
In response, Respondent’s counsel averred that the Appellant’s notice of appeal as shown on page 272 of the records shows that the Appellant was appealing against the admission of exhibit DW1 as evidence in proof of the Respondent’s counterclaim. Counsel then pointed out that there was no exhibit admitted by the trial court as exhibit DW1. He submitted that it is trite that grounds of appeal and issues raised must relate to the decision appealed against and that since ground 2 of the notice of appeal does not relate to the decision of the court and also the issue as formulated does not flow from the grounds of appeal, the appeal is incompetent and should be struck out. He cited AG ANAMBRA STATE V. OKEKE (2002) 5 SC Pt. 11 Pg. 58; CC & INDUSTRIES S.P.R LTD V. OGUN STATE WATER CORPORATION (2002) 4 SC Pt. 11 Pg. 138.
Counsel for the Respondent submitted without concession that even if Exh. D1 – 10 was mistakenly referred to as DW1 by the Appellant, the Appellant’s argument in respect of its inadmissibility was still misconceived. Counsel pointed out that the provision of section 91 (4) defines who the maker of a document is. Counsel argued that the issue of inadmissibility of a document made by a person interested at a time when proceedings was pending does not arise as the Respondent wasn’t the maker of the receipts tendered as exhibit D1 – 10. The receipts were issued by Allen Transport Service Corporation and since it cannot be referred to as a ‘person interested’, section 91 (3) does not apply. He cited HIGHGRADE MARITIME SERVICES LTD V. FIRST BANK OF NIGERIA LTD (1991) 1 SCNJ 110; YA’U v. DIKWA (2001) 1 NWLR pt. 715 pg. 127; ANYAEBOSI V. R. T. BRISCOE (NIG) LTD (1987) 3 NWLR Pt.59 Pg.84; SUSANO PHARMACEUTICAL LTD V. SOL PHARMACEUTICAL LTD (2001) 6 WRN 45; WDN V. OYIBO (1992) 5 NWLR Pt. 239 P9.77; OWENA BANK PLC v. OLATUNJI (2002) FWLR pt 124.
Counsel then submitted that exhibits D1 -D10 are admissible and were properly admitted by the trial court and the argument of the Appellant should be discountenanced by this court.
I must say that the argument of the Respondent’s counsel that since the Appellant mistakenly referred to Exhibit D1 as DW1 in Ground 2 of the Notice of Appeal and its particulars makes the appeal incompetent and should be struck out amounts to no issue. The fact of the nomenclature given to the exhibits is of no moment since the ground and particulars left no doubt as to the particular exhibit referred to. For the purpose of this appeal, I hold that the Appellant was indeed referring to Exhibits D1-D10, receipts issued by Allen Transport Service Association between August 2005 and January 2006 contained on pages 54 -59 of the records.
Section 91 (3) of the Evidence Act renders inadmissible any document made during “the pendency of a suit. Section 91 (3) provides as follows:
“Nothing in this section shall render admissible as evidence any statement made by a person interested at the time proceeding were pending or anticipated involving a dispute as to any fact which the statement might tend to establish”
Let us consider the facts of this case. The action was commenced in December 2005 and the receipts were issued between August 2005 and January 2006. It would seem that it is only the receipt issued in January 2006 that is in danger of falling within this provision.
Moreover, the section refers to documents made by ‘person interested’ and section 91 (4) goes further to define who a maker of a document is. Section 91 (4) provides that:
“For the purpose of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part thereof was written, made or produced by him with his own hand, or was signed or initiated by him or otherwise recognized by him in writing as one for the accuracy of which he is responsible”
This Court has held that estimate of repairs though made during the pendency of the suit does not suffer from the disability of S.91 (3) of the Evidence Act because the maker of the estimate was not an interested party in the suit. An interested party contemplated in the exclusion of evidence or disqualification therefore is a person who is interested in the outcome of the litigation. See IGBINOVIA V. AGBOIFO (2002) FWLR Pt.103 Pg.505 at 517, OWENA BANK PLC, V. CHIEF OLATUNJI & ORS. (2002) FWLR Pt.124 Pg.529 at 591. The overriding raison d’etre of the legislation in my humble view is that the Courts would not allow a person interested to cook up a statement during the pendency of a suit or its anticipation in order to defeat the course of justice. In UGWU V. ARARUME (2007) 6 SCNJ Pg.316 at 354 – 355, the Supreme Court held that even though PDP was not a party in the proceedings at the material time, the document made by PDP was inadmissible under S.91 (3) because they were interested in the outcome of the litigation between UGWU V. ARARUME.
There is a presumption that the date the document carries was the date it was made.
The receipts were issued/ made by Allen Transport Service Association and since Allen Transport Services cannot be considered a party interested, I don’t see how any of the receipts can fall within the meaning of section 91 (3). See YA’U V. DIKWA (2001) 8 NWLR Pt.715 Pg.127.
Quite apart from that, the Respondent did not initiate the action and could not have sourced the receipts because she anticipated that they would come in useful during litigation. Even the singular receipt that was issued after the litigation started is not excluded since the deprivation of the vehicle by Appellant was still ongoing at the time.
In the circumstances, I am of the view that this issue be resolved against the Appellant.
ISSUE THREE
On this issue, counsel to the Appellant submitted that the trial court was wrong in refusing to grant to the Appellant the order of sale of the vehicle. Counsel referred to the trial court’s judgment on page 258 of the record where it held as follows:
“Although the claimant ordinarily might have been entitled to sell the vehicle so as to recover the outstanding loan owed to them. The court has found that the detention of the said vehicle is illegal, the court will not lend its aid to the claimant’s illegality and resort to self help. The court therefore finds that the claimant is not entitled to the order of sale of the vehicle sought to realize the debt.”
Counsel argued that this decision is wrong on several counts. Counsel submitted that since the vehicle in question is registered in both the names of the Appellant and the Respondent and the vehicle was security for the loan given to the Respondent the Appellant was entitled to the right of sale especially since the Appellant was not the one who seized the vehicle but the Police.
In reply, counsel to the Respondent argued that the counter-claim having succeeded in part, the Respondent was no longer indebted to the Appellant and in fact, by the judgment of the trial court, the Appellant was now indebted to the Respondent and as such there was no basis for the court to order the sale of the vehicle which was then in the possession of the Appellant. The trial court could not order the sale of the vehicle to offset a non-existent debt. Counsel submitted that the argument of the Appellant should therefore be discountenanced.
In the light of the resolution of the first two issues, I agree with the Respondent’s counsel that there is nothing on which an order for sale can be based. The trial court having given judgment as it did and having awarded damages to the Respondent against the Appellant that far exceeds the Respondent’s original indebtedness to the Appellant, the Appellant’s claim for an order for sale is no longer relevant.
The Appellant could have appealed against the quantum of the award for damages, but it did not do so. A judge is not a Father Christmas and as such cannot grant a relief not sought. The 3rd issue is also resolved against the Appellant.
In totality, this appeal lack merit and it is hereby dismissed. I award N50,000.00 cost to the Respondent against the Appellant.
I. M. M. SAULAWA, J.C.A.: I had read the judgment prepared and delivered by the Hon. Justice H. M. Ogunwunmiju, JCA. I had equally perused the briefs of argument of the learned counsel to the respective parties vis-a-vis the record of appeal, as a whole. Thus, I cannot but concur with the reasoning and conclusion reached in the judgment in question, to the effect that the appeal lacks merits. The pertinent question raised in issue No. 1 is whether or not the court below was right to have found and held the Appellant liable for the seizure of the Respondent’s vehicle by the police, and the attendant damages suffered by the Respondent. Instructively, the fact that the Respondent was arrested and detained by the police at the instance of the Appellant is not at all in controversy. Undoubtedly, by virtue of the provisions of the police Act CAP 359 Laws of the Federation of Nigeria L990, the police have the power to receive complaints and investigate the commission of any offence. By virtue of section 33 of the police, the provision of Act (supra), the police have the power to conduct in person all prosecutions before any court of competent jurisdiction in Nigeria. However, the exercise of such power is strictly subject to the far reaching powers accorded the Attorney General of the Federation (or state) under sections 174 and 211 of the constitution of the Federal Republic of Nigeria, 1999, as amended. See PROFESSOR M. B. AJAKAIYE & ORS vs. FEDERAL REPUBLIC OF NIGERIA (2010) 11 NWLR (pt.1206) 500 at 524 paragraphs D – E.
The gravamen of the Respondent’s counter claim to the Appellant’s claim for recovery of debt at the trial court was damages for false imprisonment (of the Respondent) and illegal detention of the vehicle thereof. It is indeed trite, that the term false imprisonment, as a common law misdemeanor and a tort, denotes a restraint of a person in a bounded area without any justification or consent. The term applies to both private as well as governmental detention. According to R.F.V. Heuston, in SALAMOND ON THE LAW OF TORTS, 17TH edition, 1977 at 123 –
[In the phrase false imprisonment] false is…used, not in the ordinary sense of mendacious or fallacious, but in the less common though well established sense of erroneous or wrong; as in the phrases false quantity, false step, false taste, etc.
See also BLACK’S LAW DICTIONARY 9TH edition, 2009 at 677 – 678 thus:
Some courts have described, false and false imprisonment as causes of action which are distinguishable only in terminology. The two have been called virtually indistinguishable, and identical. However, the difference between them lies in the manner in which they arise. In order to commit false imprisonment, it is not necessary either to intend to make an arrest or actually to make an arrest. By contrast, a person who in falsely arrested is at the same time falsely imprisoned. “32 Ani Jur. 2nd False Imprisonment c3 (1995).”
It’s a well settled principle, that an action for false imprisonment (or false arrest, as the case may be) will not lie against a private individual who merely gave information which led the police, on their own initiative, to apprehend a suspect. See ISHENO vs. JULIUS BERGER (NIG) PLC (2008) 6 NWLR (pt.1084)582 at 597. Conversely, for an action for imprisonment to lie against a private individual, the complainant has an onerous duty of establishing that the defendant was actively responsible for setting the law in motion against him. See OKONKWO vs. OGBOGU (1996)5 NWLR (pt.449) 420 at 33 per Ogbuegbu, JSC.
In the instant case, there’s every cogent evidence to establish that the Appellant was [actively] instrumental in arresting and detaining the Respondent by the police. The report to the police resorted by the Appellant was unwarranted unreasonable. As aptly observed in the lead judgment –
The police…is not a collecting organization…and should not in any community of civilized people be used as debt or levy collectors, or in the resolution of disputes, amongst people.
See IGWE vs. EZEANUCHIE (2010) 7 NWLR [pt.1192] 61; AGBAI vs. OKUGBUE (1991)7 NWLR [pt.204) 391: NKPA vs. NKUME [2001] 6 NWLR (pt.710)543.
Undoubtedly, the attitudinal disposition of the present Appellant is, to say the least, despicable and rather reprehensible. The provisions of the Police Act, CAP P19 Laws of the Federation of Nigeria 2004 (supra) are very much unequivocal as regards the duties and powers of the police in maintaining peace, law and order in the society. Most certainly, debt collection or loan recovery is not within the per view of the statutory duties and powers of the police.
Hence, having concurred with the reasoning and conclusion reached in the lead judgment, to the effect that the instant appeal is grossly unmeritorious, I hereby dismiss same. I abide by the consequential order of cost of N50,000.00 awarded in favour of the Respondent, against the Appellant.
SIDI DAUDA BAGE, J.C.A.: I had the special advantage of reading in draft, the lead judgment
of my learned brother, Ogunwumiju JCA, I agree that the appeal lacks merit. I intend to add a few words of my own, as to what constitutes a false imprisonment.
The definition of false imprisonment from the learned authors of Clerk and Lindsell on Torts, 14th Edition at page 681 is found quite apt in the resolution of this head of claim. The tort of false imprisonment is defined as follows:-
“A false imprisonment is complete deprivation of liberty for anytime however short without lawful cause, imprisonment is no other thing but the restraint of a man’s liberty whether it be in the open field, or in the stocks or in the cage in the street, or in a man’s own house, as well as in the common goalie; and in all the places the party so restrained is said to be a prisoner so long as he hath not his liberty freely to go at all times to all places whither he will without bait or main praise or otherwise. The prisoner may be confined within a definite space by being put under lock and key or his movements may simply be constrained by the will of another”.
The law will support a person who had good reasons to make a report to the police on an offence so long as he wants them to use their own discretion in taking further steps. An action for false imprisonment will not lie against an individual who merely gave information to the police, on their initiative to arrest a suspect. However a party to an action for false imprisonment may succeed, if he can prove that it was the other party that was actively responsible in setting the law in motion against him. From the abundance of evidence in this appeal, I do agree with the lead judgment that, the appellant herein was actively instrumental in setting the law in motion against the Respondent.
For this, and other detailed reasoning contained in the lead judgment, I too have dismissed the appeal as lacking in merit, and abide by the consequential order as contained therein.
Appearances
Abdulkarim Aminu with him Paul EdimeFor Appellant
AND
Mike Umoman with him Jude IraborFor Respondent
